Burden of Proof in Civil Actions
Introduction:
This note will discuss civil actions and the burden of proof on parties in a civil action. On the latter, the note will discuss the burden of producing evidence, the burden of persuasion and circumstances under which these burdens will shift from one party to the other.
Meaning of Civil Action:
Although the Evidence Act, 1975 (NRCD 323) makes provisions for the burden of proof in civil actions, it does not define a “civil action.” A civil action, however, also referred to as a civil case, is defined in Section 117 of the Courts Act, 1993 (Act 459) as follows:
"civil case" includes any action, suit or other original proceedings between plaintiff and defendant;
Per Black’s Law Dictionary, a civil action is:
An action brought to enforce, redress, or protect a private or civil right; a non-criminal litigation. Also termed (if brought by a private person) private action; (if brought by a government) public action.
For instance, actions to recover damages for breach of contract and actions to enforce the provisions of the constitution are civil actions.
Burden of Proof in Civil Actions:
In the introductory note on burden of proof, it was explained that the phrase “burden of proof” is an umbrella term that consists of the following two categories of burdens:
In light of the above categorisation, any discussion of the burden of proof in civil actions must discuss:
This was acknowledged in the case of Anas A. Anas v. Kennedy Agyepong Civil Suit No. GT/892/2018, where the court, in discussing the burden of proof in civil suits, first defined the burden of proof in civil suits as “the duty of producing evidence in support of averments necessary for the court’s decision” and added that:
The obligation on the party making the averment is two-fold. The first is the production of evidence in proof of the averment, as required by sections 11(1) and 14 of the Evidence Act, 1975 (N.R.C.D 323).
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The second leg of the obligation on the averrer is to ensure that the evidence adduced meets the standard of proof set by the law. The evidence must be sufficiently cogent in persuading the trier of fact under section10 (1), Act 323, of the existence of the fact alleged.
These two burdens or obligations are now discussed.
1. THE BURDEN OF PRODUCING EVIDENCE IN A CIVIL ACTION:
In this section, we will discuss:
A. The meaning of the burden of producing evidence.
B. Requirement of the burden of producing evidence.
C. How the burden of producing evidence is discharged.
D. Methods of producing evidence.
E. Party who bears the burden of producing evidence
A. Meaning of the Burden of Producing Evidence:
In Section 11(1) of NRCD 323, the burden of producing evidence is defined as follows:
For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
In the case of Duah v. Yorkwa [1993-94] 1 GLR 217, the court, in interpreting the burden of producing evidence under Sections 11, 12, and 13 of NRCD 323, said that
The burden of producing evidence “means the duty or obligation lying on a litigant to lead evidence.” In other words, these latter actions cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.
B. Requirement of the Burden of Producing Evidence:
In Section 11(4) of NRCD 323, it is provided that:
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.
In the case of Duah v. Yorkwa (supra), Brobbey J.A. explained that the phrase “in other circumstances” “could only be referrable to civil trials since the preceding two paragraphs had dealt with criminal trials.” In that case, the plaintiff-respondent had sought to recover possession of a house from the defendant-appellant on the ground that the predecessor of the defendant-appellant got possession of the house through a pledge and not a sale. The court noted that the burden of producing evidence placed a duty or burden on the plaintiff-respondent to produce evidence “so that the trial court would conclude that the existence of the pledge was more probable that its non-existence.”
Summarily, the burden of producing evidence requires a party to produce evidence which may lead the court to conclude that the existence of a fact is more probable than its non-existence.
C. How the Burden of Producing Evidence is Discharged:
According to Keane and Mckeown [1], the burden of producing evidence “is discharged when there is sufficient evidence to justify, as a possibility, a favourable finding by the tribunal of fact.”
In the case of Anas A. Anas v. Kennedy Agyepong (supra) , the court stated three ways by which the burden of producing evidence may be discharged. These are:
D. Methods of Producing Evidence:
In the case of Ackah v. Pergah Transport Ltd. and Others Civil Appeal No. J4/5/2009 , the Supreme Court of Ghana stated that:
The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury.
Thus, in producing evidence, a party may produce real evidence (physical objects like a murder weapon), testimonial or oral evidence (statements provided by witnesses under oath), demonstrative evidence (like a map, image, an illustration or site plan), and documentary evidence (like the written terms of a contract).
E. Party with the Burden of Producing Evidence:
For the purpose of simplifying the discussion on the party with the burden of producing evidence, we shall examine:
These are now discussed.
i. The general burden of producing evidence on the plaintiff:
In a civil action, the principle of law is that he who alleges, affirms, asserts, or avers must prove. This is reflected in the maxim Ei incumbit probatio qui dicit, non qui negat , which translates “The burden of the proof rests on the person who affirms, not the one who denies.” (Black's Law Dictionary, 9 th ed.) This maxim is also fully stated as ei incumbit probatio, qui dicit, non qui negat, cum per rerum naturam factum, negantis probatio nulla sit which means “the proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce proof.”
In the case of Dua v. Afriyie and Others [1971] 1 GLR 260 , the court also stated that there is a “well-known rule of the law of evidence that he who affirms must prove and not he who denies.” Also, in the case of Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 , the Supreme Court of Ghana affirmed that “it is the duty of the party who asserts the affirmative to prove the point in issue. This was expressed in classical terms: "Ei incumbit probatio qui dicit, non qui negat."”
In a civil action, it is often the plaintiff who alleges or affirms and generally has the burden of producing evidence to prove his case. This is provided for in Section 11(1) of NRCD 323, which reads:
(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
In the case of Duah v. Yorkwa (supra), the Court of Appeal, speaking through Brobbey J.A., explained that the provision in Section 11(1) (supra) essentially places the burden of producing evidence on the plaintiff. His lordship extensively explained that:
In our jurisprudence, if two parties go to court to seek redress to a dispute, it is the plaintiff who initiates the litigation and literally drags the defendant into court. If both parties decide to lead no evidence, the order which will be given will necessarily go against the plaintiff. Therefore, it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11 (1) of NRCD 323 which provides that:
“11. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”
The position in the instant case is this: The house was originally in the possession of the plaintiffs. Some time in the history of the house, possession of it went to the defendant. The plaintiffs wanted to repossess it. So they instituted the instant action claiming ownership and repossession for the reason that the house went to the defendant on the basis of a pledge whose terms justified their claim to ownership and repossession. A pledge is a positive averment which must be proved and its terms clearly established. If the plaintiffs who pleaded a pledge gave no evidence the averment of a pledge would remain unproved. A ruling that no pledge has been proved or established would go against the plaintiffs and that would mean further that the basis of the claim to repossession and ownership would have failed.
Thus, since it is often the plaintiff who wants a ruling on certain issues to be in his favour, such as the issue of declaration of title to land, the plaintiff, generally, has the burden of producing evidence.
ii. The general absence of a burden of producing evidence on the defendant:
Generally, there is no obligation on the defendant to disprove the claim of the plaintiff. In the case of Barima Gyamfi v. Ama Badu [1963] 2 GLR 596 , the Supreme Court of Ghana explained that:
In a claim made by a Plaintiff, there is no onus on the Defendant to disprove the claim so that however unsatisfactory or conflicting the Defendant’s evidence may be, it cannot avail the Plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the Plaintiff’s evidence might have created in the Plaintiff’s favour or if it tends to corroborate the Plaintiff’s evidence or tends to show that evidence led on behalf of the Plaintiff was true.
Thus, while the plaintiff is actively producing evidence to establish the requisite degree of belief in the mind of the court, the defendant does not have to also produce evidence to prevent the establishment of the requisite degree of belief in the mind of the court.
However, the defendant is required to lead evidence to prove his case if the plaintiff was able to tilt the balance of probabilities in his favour. The cases of Fosua & Adu Poku v. Dufie (Deceased) & Adu Poku Mensah [2009] SCGLR 310 and Duah v. Yorkwa (supra) are authority for this principle. In Duah v Yorkwa (supra), for instance, the court held that the plaintiff-respondent had the burden of producing evidence to prove that the defendant-appellant got possession of the house by way of a pledge and not a sale. It, however, noted that the burden to produce evidence can shift from the plaintiff-respondent to the defendant-appellant. The court noted that if the plaintiff produced evidence so that the trial court would conclude that the existence of the pledge was more probable than its non-existence, the onus would shift to the defendant, who would be obligated to adduce sufficient evidence on the sale, which was essential to the defence he asserted.
iii. The burden of producing evidence on a particular fact.
Beyond the general burden on the plaintiff to produce evidence to avoid a ruling against him, it is also provided that a party (who may or may not be the plaintiff) that alleges a particular fact has the burden of producing evidence to prove that particular fact. This is provided for in Section 17 of NRCD 323, which reads:
(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.
(2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
The above provision can easily be understood with the following illustration. Suppose X sues Y for breach of contract for failing to deliver goods as agreed. Y, in his defence, alleged that he failed to deliver the goods because X did not pay the full price for the goods. While X, as plaintiff, generally has to produce evidence to avoid a ruling against him in the case, Y equally has to produce evidence to avoid a ruling against him on the particular fact that X did not pay the full price for the goods.
In the case of Thompson v Total Ghana Ltd. Civil Appeal NO. J4/3/2010 , for instance, the plaintiff-respondent was suspended from work by the defendant-appellant for allegedly being implicated in a police investigation. He instituted an action for wrongful suspension, and the defendant-appellant contended that the suspension was lawful. At trial, the defendant-appellant did not call the police to testify to the involvement of the plaintiff-respondent in any offence. The court, in giving judgement against the defendant-appellant, stated that there was
an obligation on the part of the appellant to provide credible evidence to the trial court that would render the allegation on which its suspension of the appellant was based more probable than the version of a denial which was the pivot of the appellant’s case.
Thus, while the appellant was not the plaintiff in the High Court, he made a particular allegation that the plaintiff-respondent was suspended for being implicated in police investigations, and therefore, had an obligation to provide evidence to prove that allegation and dispose of the plaintiff’s claim that his suspension was unlawful.
Also, in the case of Bilson v. Rawlings and Another [1993-94] 2 GLR 413—428 , it was stated that the law has always been that he who alleges that certain state of facts exist, must prove it. In this case, the plaintiff being the one who has in the suit before the court averred that the first defendant is a non-Ghanaian, the law places on him the burden of proof.
In that case, the plaintiff was not simply required to produce evidence to avoid a ruling against him but was required to do so because he alleged that a particular fact was true and therefore had the burden of producing evidence to prove that particular fact in accordance with Section 17 of NRCD 323. Coincidentally, that fact was central to the plaintiff’s claim, and he also had to produce evidence to prove it pursuant to Section 11(1) (supra).
iv. The exception to the rule that he who alleges or avers must prove:
The above discussion on the general burden of the plaintiff to produce evidence and the burden on a party to prove what he alleges or avers is subject to some statutory exemptions. For instance, in the case of Dua v. Afriyie [1971] 1 GLR 260, Section 3 of the Moneylenders Ordinance, Cap. 176 (1951 Rev.) provided that:
Any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed to be a moneylender until the contrary be proved.”
The effect of this provision, as explained by the court, was that:
The statute thus creates a rebuttable presumption in favour of a person who alleges that another is a moneylender provided he shows that that person lent money even on one occasion at interest. From a purely evidential point of view, if the person against whom such proof is offered elected to offer no evidence, then a court would be justified in holding him to be a moneylender…
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Section 3 of the Ordinance seems to reverse the well-known rule of the law of evidence that he who affirms must prove and not he who denies. But this clearly is a legislative policy expressed in unambiguous language and it is not for us to question the wisdom of the legislature. It is plain that the whole object of the Moneylenders Ordinance is to protect borrowers from exploitation by moneylenders. It is therefore not surprising that Parliament would want to go to great lengths to achieve this even if this results in setting at nought well established rules of law.
Thus, a person may allege that another person is a moneylender, but will not have to prove that allegation by virtue of the operation of Section 3 of the Moneylenders Ordinance, Cap. 176 (1951 Rev.)
The decision in Dua v. Afriyie (supra) was cited with approval in Ahenfie Cloth Sellers Association v. Mensah and Others Civil Appeal No. J4/7/2010 .
v. The burden on the defendant to produce evidence for a counterclaim:
It is also the position of the law that where a defendant makes a counterclaim, he is in the same position as the plaintiff regarding the burden of proof, and equally has the burden of producing evidence to prove his counterclaim.
The cases of Aryeh & Akakpo v. Aya Iddrisu [2010] SCGLR 891, Malm v. Lutterodt [1963] 1 GLR SC, and Apea v Asamoah [2003-2004] 1GLR SC provide authority for the above legal proposition . In the case of Aryeh & Akakpo v. Aya Iddrisu (supra) , for instance, the Supreme Court of Ghana stated that:
A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case.
vi. The burden of producing evidence as a right or privilege:
In some instances, the court may request that a party that ordinarily does not have the burden of producing evidence, produce evidence as a way of privilege and for effective case management. When this happens, the party to whom the privilege is given may refuse to assume the burden of producing evidence.
See the case of Bielbiel v. Daramani and Another [2012] GHASC 13 (8 February 2012) .
2. THE BURDEN OF PERSUASION IN A CIVIL ACTION:
In this section, we will discuss:
A.Insufficiency of the burden of producing evidence for success in a case.
B. Meaning of the burden of persuasion.
C.Standard of proof in a civil action.
D.Maintenance of the preponderance of probabilities as the standard of proof in all civil actions
E.Exception to the rule that the standard of proof in civil actions is the preponderance of probabilities.
F. Party with the burden of persuasion.
A. Insufficiency of the Burden of Producing Evidence:
It should be remembered that the production of evidence is merely a means to an end. The end here is for the court to be persuaded that the existence of a fact is more probable than its non-existence. After a party discharges the burden of producing evidence, the evidence may or may not persuade the court. This was succinctly espoused by Keane and Mckeown [1] when they wrote that “however, it does not follow that a discharge of the evidential burden necessarily results in a discharge of the legal burden (burden of persuasion).” This is because in discharging the evidential burden, a party may produce contradictory evidence, insufficient evidence, or fail to produce evidence that successfully refutes the evidence produced by the other party.
Thus, in deciding whether a party is successful, the court does not only decide whether the party discharged the burden of producing evidence, but evaluates the evidence to determine if it persuades the court. This position is supported by In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. v. Mahama & Ors. [2013] SCGLR (Special Edition) 73 , where the Supreme Court held that:
Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.
B. Meaning of the Burden of Persuasion:
In the case of Duah v. Yorkwa (supra), Brobbey JA, in characterising the burden of persuasion, stated that:
Considering the wording ofSection 10(1) of NRCD 323in the light of the Commentary on the Evidence Decree at pp 14-16, I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact.
In said Section 10(1) of NRCD 323, the burden of persuasion is defined as:
the obligation of a party to establisha requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.
C. Standard of Proof in a Civil Action:
In Section 10(1) (supra) of the definition of the burden of persuasion, the phrase “requisite degree of belief” is used. This phrase, commonly described as the standard of proof , is the degree or level of proof demanded in a specific case.
In Section 10(2) of NRCD 323, various standards of proof are provided. The section reads:
(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.
The above provision covers the standard of proof for both civil and criminal actions. In a civil action, the standard of proof is “preponderance of the probabilities.” This is provided in Section 12 of NRCD 323 as follows:
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.
Also, in the case of GIHOC Refrigeration & Household v. Jean Hanna Assi [2005-2006] SCGLR 458 , the Supreme Court of Ghana held that:
Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities.
To illustrate, in an action for breach of contract where the defendant argues there was no contract, the plaintiff will have to produce evidence to show the existence of a contract. This obligation on the plaintiff is merely the burden of producing evidence. To succeed in the action, the plaintiff must not just produce any evidence at all, but produce evidence of such quantity and quality that will convince the court that the existence of a contract is more probable than its non-existence. This may include an offer letter, an acceptance letter, and evidence of an intention to create legal relations.
D. Maintenance of the Preponderance of Probabilities as the Standard of Proof in All Civil Actions:
In some cases, some courts have attempted to change the standard of proof in civil cases to “proof beyond a reasonable doubt.” This was especially true in cases for declaration of title to land. In the case of Adwubeng v. Domfeh [1997-98] 1 GLR 282, for instance, the plaintiff instituted an action against the defendant for a declaration that certain lands were stool lands. At the trial court, the trial judge (Rose Owusu J.) stated that the standard of proof in actions for title to land is proof beyond reasonable doubt and not on the balance of probabilities. In her words,
Each party seeks a declaration of title to the land in dispute and a claim for declaration of title cannot succeed on the balance of probabilities. The standard of proof is high and it is now equated to the degree of proof in criminal cases, i.e proof beyond all reasonable doubt.
On appeal to the Supreme Court, the Supreme Court of Ghana, speaking through Acquah JSC, acknowledged that before the coming into force of NRCD 323, a host of respectable decisions, such as Bissah v. Gyampoh [1964] GLR 381 , had firmly established such a standard of proof for titles to land. However, upon the coming into force of NRCD 323, Section 11(2) imposes proof beyond reasonable doubt only on prosecutions in criminal actions, and proof of a commission of a crime in any civil or criminal actions. His lordship further noted that:
Sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities—no exceptions are made. In the light of NRCD 323 therefore, the cases which hold that proof of title to land required proof beyond reasonable doubt, no longer represent the present state of law
E. Exception to the Rule that the Standard of Proof in Civil Actions is the Preponderance of Probabilities:
Although the position of the law is that in a civil action the standard of proof is on the preponderance of probabilities, this rule has one exception. In Section 13(1) of NRCD 323, it is provided that:
(1)In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.
Thus, after the commencement of a civil action, it may be alleged that a party committed a crime. Under such circumstances, the standard of proof is not the usual preponderance of probabilities in civil action but proof beyond reasonable doubt.
In the case of Fenuku v. John Teye [2001-2002] SCGLR , Mr. Rudolf Fenuku, by a deed of conveyance, sold land to John Teye. After the deaths of both parties, the children of Mr. Fenuku sought a declaration of title to the land on the ground that the land was the joint property of Mr. and Mrs. Fenuku and could not be wholly disposed of by Mr. Fenuku. During trial, they alleged that the signature of Mr. Fenuku on the deed of conveyance had been forged. Their lordships of the Supreme Court noted that to prove forgery or any allegation of a criminal act in a civil trial, one must avert his mind to Section 13(1) of NRCD 323. This provision requires that “where… a criminal act is the issue in a civil trial, the burden of persuasion requires proof beyond reasonable doubt, though the sufficiency of the evidence required to attain that standard would depend, to a large extent, on the gravity of that particular offence”
F. Party with the Burden of Persuasion:
i. General Burden of Persuasion
Similar to the burden of producing evidence, where the party who asserts has the burden to produce evidence, the party who asserts has the burden to persuade the court of the existence of a fact. This was stated in Takoradi Flour Mills v. Samir Faris (supra) as follows:
In law where a fact is essential to a claim, the party who asserts the claim has the burden to persuade the court of the existence of that fact. The standard of proof is by a preponderance of the probabilities.
In Section 14 of NRCD 323, the following provision is made on the allocation of the burden of persuasion:
Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.
So, in the case of Duah v. Yorkwa, for instance, the plaintiff-respondent was the one asserting that the defendant-appellant got possession of the house by pledge and thus had the burden of persuasion.
ii. Burden of Persuasion in Particular Cases:
Beyond the general provision on the burden of persuasion, Section 15 of NRCD 323 makes the following provision on the burden of persuasion in particular cases (but our focus here is on civil cases):
(1) Unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue.
(2) Unless and until it is shifted, the party claiming that a person did not exercise a requisite degree of care has the burden of persuasion on that issue.
(3) Unless and until it is shifted, the party claiming that any person, including himself, is or was insane or of unsound mind has the burden of persuasion on that issue.
Conclusion:
This note discussed the burden of proof in civil actions. It was explained that the burden of proof in civil actions involves the burden of producing evidence and the burden of persuasion. In discussing the burden of producing evidence, we examined the burden on the plaintiff to produce evidence, the burden on the party alleging a fact to produce evidence, circumstances under which a defendant may have the burden of producing evidence, among others. We highlighted that the mere production of evidence is not enough, and a party can only discharge the burden of proof if he produces evidence of such quantum and quality that establishes the requisite degree of belief concerning a fact in the mind of the court. We then highlighted that in civil cases, this requisite degree of belief is often called the standard of proof, and generally requires the preponderance of probabilities. In subsequent notes, we will discuss the burden of proof in criminal actions.
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